A. Background

A wetlands permit appeal may be brought by a property owner, abutter, ten residents group, aggrieved person or local Conservation Commission. In general, the petitioner seeks to vacate or modify two types of decisions made by the Department under the Wetlands Protection Act, M.G.L. c. 131, 40, and Regulations, 310 CMR 10.00: (a) a superseding orders of conditions (granting or denying wetlands permits), or (b) a superseding determinations of applicability (basically, an advance jurisdictional determination whether an area or proposed work is subject to regulation under the Wetlands Protection Act and Regulations). The key decisionmaking objectives are protecting wetlands interests identified in the Wetlands Protection Act and Regulations (e.g., storm damage prevention, flood control, prevention of pollution, protection of wildlife habitat) and project compliance with performance standards for certain types of wetlands that the Regulations require (e.g., replication of altered bordering vegetated wetlands, provision of compensatory flood storage where alteration of bordering land subject to flooding would cause a loss of flood storage volume).

B. Opinion testimony in wetlands permit appeals

Matter of Yentile, Trustee, Yentile Family Trust, Docket No. 91-077, Final Decision, 1 DEPR 93 (May 23, 1994).

The Department determined that petitioners' proposed improvement of drainage and agricultural yield on their Wilmington, Massachusetts farm (by raising the level of the farm's wet lower fields 3-5 feet using fill topped with farm loam) would be carried out at least partially in wetlands (bordering land subject to flooding and bordering vegetated wetland). It also determined that the work (1) could not be permitted because it would alter the wetlands without replicating them or compensating for lost flood storage volume, and (2) could not be allowed as a "limited agricultural project" because it violated the regulatory performance standard requiring no change in the existing topography or the existing soil and surface water levels of the area.

On appeal, the proposed work was determined to be exempt from regulation as normal maintenance and improvement of land in agricultural use (under the applicable older version of the Wetlands Regulations) so long as it would occur in previously-farmed areas. The determination was based upon:

(a) testimony by eastern Massachusetts farmers that it was normal practice in their farming community to fill and grade low-lying farmland where, after the land had long been devoted to growing and harvesting crops, the soils had become saturated or wet soil conditions had become persistent, in order to improve drainage, prevent crop damage and loss, and restore and improve crop growth and harvesting conditions.

(b) testimony by the petitioners, who had farmed the land in question for several decades, that the proposed work would improve the cultivation of vegetable crops by elevating the root zone above levels of excessive wetness, reducing wetness-related seed mortality, providing suitable soil conditions in the subbase below the topsoil for plant growth, allowing efficient use of disking and harrowing beginning early in the growing season unhampered by excessive mud and wetness, increasing crop yields and diversity by eliminating persistent soil wetness, and allowing the raising of successive crops during the growing season.

Matter of Anderson, Docket No. 95-085, Final Decision (April 8, 1997).

The Department issued a superseding order of conditions allowing the applicant to construct a single family dwelling, garage and septic system on property classified as "land subject to coastal storm flowage," a type of coastal wetland. The petitioners, who owned abutting property, claimed that the proposed septic system would be sited close to a well on their property, and that its construction would replace soils with low permeability with more permeable soils, allowing salt water intrusion into the groundwater tapped by the well. This, the petitioners argued, would be inconsistent with the protection of a private water supply, one of the statutory wetlands interests protected by M.G.L. c. 131, 40.

The Department's motion to strike the opinion testimony of the petitioners' engineer for lack of expert qualification was denied. The engineers' resume, attached to his prefiled direct testimony, showed that he had over 12 years of engineering experience, including involvement as an engineer in water supply projects and hydrologic investigations, and that he had adequate training and experience to testify about the impacts of the proposed septic system on the petitioners' well.

However, the engineer's opinion that the septic system's leaching field would create a conduit for salt water intrusion into groundwater tapped by the petitioners' well was not factually supported. The material covering the septic system's leaching field would remain the same. Only the material beneath the leaching field would be replaced (with sand). Accordingly, there would be no change in the permeability of soils that presently resisted salt water intrusion into groundwater.

Matter of Northern Provinces, Inc., Docket Nos. 91-067/073/165 and 93-086, Tentative Final Decision, 2 DEPR 234 (November 15, 1995), confirmed by Final Decision, 3 DEPR 60 (March 27, 1996).

The applicant proposed building single family homes on each of four lots in a subdivision. A branch of the Palmer River flowed through two of the lots. There were ponds on the other two lots. Petitioners, who lived in properties adjoining the subdivision, contended that the floodplain on each of the lots (and therefore "bordering land subject to flooding," a type of wetland resource area) was more extensive than what was shown by the Federal Emergency Management Agency (FEMA) floodplain map for the area.

The Department's Wetlands Protection Regulations [at 310 CMR 10/57(2)(a)3] define the BLSF boundary as "the estimated maximum lateral extent of flood water which will theoretically result from the statistical 100-year frequency storm." The boundary is determined by consulting a flood plain map for the community in question prepared by the Federal Emergency Management Agency (FEMA). This map is presumed accurate. The presumption "may be overcome only by credible evidence from a registered professional engineer or other professional competent in such matters."

The FEMA flood plain map on which the applicant relied showed the boundary of the 100-year floodplain for the river branch crossing two of the lots at a certain elevation, but showed no associated floodplain on the other two lots containing the ponds. The petitioners' attempt to rebut the presumed accuracy of the FEMA floodplain line rested, to a great extent, upon the opinion of their civil engineer. His qualifications and opinions were unchallenged by the applicant and were the basis for a number of key rulings, among them the following:

(1) The applicant asserted that a civil engineer was not qualified to present evidence rebutting the presumed accuracy of the FEMA floodplain line. The challenge was rejected because the Regulations specifically allowed such evidence to be presented

"by any professional competent in such matters." In view of his education and experience, petitioners' civil engineer qualified as a professional competent to analyze the validity of a FEMA floodplain line. 2 DEPR at 236.

(2) The petitioners' civil engineer viewed a two year old videotape showing the river overflowing on one of these lots, upstream of a culvert through which the river flowed, on a known date. He testified that he was able to determine the extent of this flooding by using landmarks that were both visible on the videotape and depicted on the applicant's project plans. Using rainfall data he obtained from the National Weather Service, the civil engineer determined that a 50-year frequency storm had been in progress when the videotape was made. Based upon this rainfall data and the extent of flooding visible on the videotape, the civil engineer extrapolated the elevation of flooding during a 100-year frequency storm, plotted the elevation on a map, and determined that it was higher than the elevation of FEMA's 100-year floodplain line, that it passed through a portion of the proposed house and septic system on the lot in question, and that this portion of the work would therefore result in the alteration of BLSF. Although there was evidence that the flooding on the lot was exacerbated by the partial blockage of the culvert, the culvert's functioning was properly taken into account in determining the floodplain. The civil engineer presented credible evidence that the FEMA line for this lot (or, rather, the absence of one) was inaccurate. In addition, it showed that the proposed construction on this lot would alter BLSF without compensating for lost flood storage volume as the regulations required, and therefore had to be denied. 2 DEPR at 236-38.

(3) On the other hand, there was no basis for extrapolating the presence of a floodplain, and therefore the presence of BLSF, on another lot that was not visible on the videotape and that was downstream of the culvert and therefore not affected by backups of river flow caused at least in part by culvert blockage. As to this lot, therefore, the civil engineer's testimony did not present credible testimony overcoming the FEMA floodplain line and did not show the presence of BLSF. 2 DEPR at 238.

II. WATERWAYS LICENSE APPEALS

A. Background

The Department administers the public trust in the Commonwealth's intertidal areas, found in flowed and filled tidelands (except landlocked filled tidelands), along certain rivers and streams, and in Great Ponds. M.G.L. c. 91 and the Department's Waterways Regulations, 310 CMR 9.00, govern the licensing of projects in these areas, including the construction of piers and marinas, shoreline protection or recreational structures, filling, and dredging. Projects cannot interfere significantly with fishing, fowling and navigation, the traditional public trust uses. The Waterways Regulations specify other standards applicable to waterways project licensing, which include the protection and promotion of water-dependent uses and public access to the water's edge, and compliance with other applicable environmental regulatory programs.

A waterways license appeal may be brought by a property owner, abutter, ten citizens group or aggrieved person. In general, the petitioner seeks to vacate or modify a waterways license or license denial issued by the Department.

B. Opinion testimony in a waterways license appeal

Matter of Abdelnour, Docket No. 88-138, Final Decision: Part I, 1 DEPR 326 (November 22, 1994).

The petitioners challenged waterways licenses allowing the construction of residential timber pile piers by each of several applicants along the same shoreline of Lagoon Pond on Martha's Vineyard. They claimed that the piers would adversely affect shellfisheries, water quality, the ecological balance in Lagoon Pond, and existing public recreational uses such as sailboating and windsurfing. They also claimed that the piers would adversely affect navigational safety by blocking or dangerously narrowing lateral water access to adjacent properties, especially by sailboat.

The appeal generated a significant volume of motion practice, including motions to strike portions of the prefiled testimony. The live portion of the adjudicatory hearing (cross-examination, re-direct and recross) consumed 36 days. Prefiled direct and rebuttal testimony was filed by 16 witnesses, of whom 9 were qualified as experts. Much of this testimony, both lay and expert, consisted of opinions. A sampling of its treatment in Part I of the two-part Final Decision follows:

(1) One of the petitioners presented extensive testimony on the issue of navigation safety, e.g., that two feet is the minimum depth for safe sailboat navigation. Although he was not qualified as an expert, his extensive sailing experience on Lagoon Pond and elsewhere was unquestioned. The ALJ ruled several times, during cross and redirect, that the petitioner's navigation-based opinions could be given without expert qualification because (a) they reflected personal knowledge of the foundation facts, and (b) his conclusions were those which could be formed by anyone who navigated a sailboat with more than a novice's experience. 1 DEPR at 330.

(2) The petitioners presented the prefiled testimony of three lay witnesses who described themselves respectively as a novice sailor and kayaker, an average sailor, and an experienced sailor, and opined that the piers would threaten safe navigation by boaters and windsurfers. Much of this testimony consisted of unreliable anecdotal and conclusory statements. The cross-examination of these witnesses undercut the assertion that the piers posed a threat to navigational safety, and revealed that the alleged substantial interference with navigation would in fact be more in the nature of an inconvenience, at worst. 1 DEPR at 333.

(3) The petitioners claimed that the piers would interfere with or abridge the public right to fishing in the foreshore by physically interfering with shoreline access. The only testimony they presented to support this claim was by one of the petitioners, a local resident, who opined that the piers might interfere with rod and reel fishing because a fish hooked near a pier might run under the pier and snap the line. This testimony was not enough to support the claim. 1 DEPR at 341.

(4) The Waterways Regulations required that the piers be constructed so as to allow public passage in the exercise of reserved public rights in the foreshore if lateral access below the high water mark would be obstructed. They did not prohibit outright any obstruction of lateral access below the high water mark. A petitioner testified that one of the proposed piers, which would be located 2-3 miles from his waterfront property, would block his lateral access along the beach. However, on cross he conceded that he would be able to walk up and down the four steps on either side of the pier and that what he really objected to was having to interrupt "a nice peaceful serene walk" by exerting himself to climb and descend these steps. His testimony showed that the piers would lessen the full, free, absolutely unimpeded and perfectly comfortable and convenient lateral access along the beach that existed presently, but would still allow public passage along the beach. 1 DEPR at 344.

(5) The petitioners opined, as laypersons, that the piers would be aesthetically objectionable, and would therefore significantly impair the value of tidelands to the public, because they would transform a "natural and productive setting" into a "marina atmosphere," disrupting a "nearly pristine shoreline," "a more peaceful life," and a "tranquil environment." These opinions

were accorded no weight because (a) they were contradicted by "a persistent doomsday theme" running throughout the petitioners' case that Lagoon Pond was already so burdened by urbanization, pollution, overuse and congestion that it could not tolerate new piers, and (b) expert opinion testimony by the former town shellfish constable that residential piers, such as those proposed by the applicants, might reduce boating congestion by moving boats shoreward to the piers and away from offshore moorings that crowded deeper waters, thereby alleviating one of the shorefront neighborhood's less attractive characteristics. 1 DEPR at 345.

(6) Expert opinion testimony by petitioners' biologist that the piers would destroy eelgrass underneath them by keeping them permanently in shadow were not supported by observations made under existing similar piers (which showed healthy eelgrass stands and ongoing photosynthesis). In addition, the opinion was contrary to common sense:

[I]t does not take an expert to understand that a structure projecting over (and therefore "covering") something may or may not cast a shadow over it, depending upon such factors as the structure's height and width, its orientation toward what it covers, and the time-variable angle of the sun to the structure. The angle of the sun to a point on earth (such as a pier) is not fixed, and sunlight may reach an area under an open-pile pier directly at an angle, by reflection from the bottom of a water body, and even by transmission through water. 1 DEPR at 346.

III. AIR QUALITY APPEALS

Matter of J.O.B. Rolloff, Inc., Docket Nos. 93-103, 93-104, Tentative Final Decision, 3 DEPR 43 (March 6, 1996).

The petitioner transported asbestos-containing waste in large rolloff containers. The Department alleged that this had been done improperly (e.g., failure to wet and properly seal the material, discharging particulates to the air, failure to obtain a solid waste management permit), and issued an enforcement order and a civil administrative penalty to the petitioner, who appealed both as baseless. The issues to be adjudicated included whether the petitioner's work practices violated the Department's asbestos storage, consolidation and transfer guidelines and, therefore, the sections of the air quality regulations cited by the Department in issuing the enforcement order and penalty. The petitioner's president filed prefiled testimony. The ALJ found that he was not qualified to testify as an expert. While he had been employed by the petitioner for three years, there was no showing that he had any expertise in the recognition and appropriate handling of asbestos.

IV. SUMMARY DECISION

A. Background

Summary decision-- the equivalent of summary judgment in D.E.P. appeals governed by its Adjudicatory Proceeding Rules, 310 CMR 1.01-- may be granted where there is no genuine, material factual issue and the legal outcome is clear. The movant must show the absence of a genuine, material factual issue. Where the motion or opposition includes an affidavit, the affidavit must be made by a competent witness and based upon personal knowledge, and must "set forth such facts as would be admissible in evidence in Massachusetts courts" [310 CMR 1.01(11)(f)].

B. Opinion testimony and summary decision

Matter of Al-Miraj, Inc., Docket No. 93-064, 2 DEPR 8 (December 23, 1994).

A ten residents group appealed a wetlands superseding order of conditions issued by the Department that allowed the construction of a 33-lot residential subdivision. The identification of the flood plain boundary and the delineation of wetlands on the subject property were issues on appeal. The applicant filed a motion for summary decision, which was granted.

The motion was supported by the affidavits of (a) a professional civil engineer, land surveyor, and certified erosion and sediment control professional, and (b) a civil engineer, both of whom opined, on the basis of National Flood Insurance Program data for the project site, that no part of the site was within the 100-year frequency storm floodplain. This was sufficient to show the absence of a genuine or material factual dispute as to the existence of a floodplain on the site. The burden of showing the existence of such a dispute, with evidence sufficient to counter the applicant's affidavits, therefore shifted to the petitioners opposing the motion for summary decision. They produced no counter-affidavits; the opposition asserted, without a supporting affidavit, that the site was subject to severe flooding, which amounted to speculation insufficient to defeat the motion on the floodplain issue.

The motion was also supported by the affidavit of a plant physiologist who delineated wetlands on the project site. His opinion as to the location and boundary of wetlands on the site was competent. The petitioners, again, produced no counter-affidavit and had no evidence showing that the applicant's identification and delineation of wetlands was genuinely disputed.